The Process of Abrogating Article 370
In scrapping Article 370 of the Constitution and reorganising the State of Jammu and Kashmir, the Government has adopted a meticulously crafted constitutional and legislative mechanism, the beauty of which may have escaped attention of most people in the tumultuous events of August 5/6, 2019. This article tries to describe and explain the mechanism adopted.
To understand the mechanism of abrogation, it is necessary to have some understanding of the background in which this exercise was undertaken. Article 370 of the Constitution and the Constitutional Order issued in 1954 in implementation of that Article formed this background.
Article 370 was a constitutional device to ensure that the Constitution of India and the laws made by the Parliament would not apply in their entirety to the State of Jammu and Kashmir. Clause (1) of Article 370 stated that: “(d) … provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify: Provided further that no such order … … shall be issued except with the concurrence of [the] Government [of the State].”
Clause (3) of Article 370 provided for the repeal or modification of this article, but only on the recommendation of the Constituent Assembly of that State.
The Constitution Order (CO 48) of 1954
In exercise of the powers conferred by Clause (1) of Article 370, the President of India issued The Constitution (Application to Jammu and Kashmir) Order, 1954, which laid down which parts of the Constitution, and with what exceptions and modifications, would be applicable to the State of Jammu and Kashmir. This Order never formed part of the Constitution of India, but was included as Appendix I. Later, several orders were passed amending the CO 48 of 1954 and specifying further exceptions and modifications in the application of the Constitution to the State of Jammu and Kashmir. All such exceptions and modifications were consolidated in Appendix II of the Constitution entitled, “Re-statement, with reference to the present text of the Constitution, of the exceptions and modifications subject to which the Constitution applies to the State of Jammu and Kashmir”.
The exceptions and modifications thus specified were extensive. Even the Preamble was modified to omit the words “socialist secular” in the first paragraph and the word “integrity” in the penultimate paragraph. The latter paragraph in its unmodified form read, “…assuring the dignity of the individual and the unity and integrity of the Nation”. It is difficult to imagine that there was indeed some Government of that State which took objection to asserting the “integrity of the nation” and even secularism of the polity, and that such an objection was entertained and accommodated by the Government at the Centre!
The spirit behind several exceptions and modifications made in the Constitution in pursuance of Article 370 was similarly difficult to comprehend. Many of the fundamental rights, which form part of the basic structure of the Constitution, were modified in their application to the State. Part IV comprising the Directive Principles of State Policy and Part IVA defining the Fundamental Duties were entirely omitted.
One of the most consequential modifications introduced through the Constitution Order of 1954 was the insertion of Article 35A. This Article, which had been the focus of much debate in the past, gave the State immunity to continue with and enact discriminatory laws defining “permanent residents” and “conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions …” This in effect meant that the State of Jammu and Kashmir was under no obligation to protect the fundamental rights of the citizens of India other than those that the State chose to define as permanent residents.
Article 370, the Constitution Oder of 1954 issued under the authority of that Article, and several orders issued to amend it had thus created an elaborate constitutional framework for the State of Jammu and Kashmir which was in several respects in conflict with the spirit of the Constitution and was in some instances against the hallowed doctrine of the basic structure.
Mechanism of retraction
The mechanism that the Government adopted to unravel this complex and ungainly constitutional structure created specifically for the State of Jammu and Kashmir involved several steps.
Step 1: Making all of the Constitution applicable to the State
The first step the Government took was to get the President to issue
The Constitution (Application to Jammu and Kashmir) Order, 2019, superseding the Constitution Order of 1954 and making “All the provisions of the Constitution, as amended from time to time” applicable to the State of Jammu and Kashmir, with only a single exception/ modification, which we discuss later.
This order (CO 272) was issued under powers conferred by clause (1) of article 370 of the Constitution, by the President with the concurrence of the Government of State of Jammu and Kashmir. This is exactly the process through which the earlier order of 1954 was issued. Concurrence of the State in this case meant the concurrence of the Governor, since the State happened to be under the President’s rule.
The order, promulgated by the President on the morning of August 5, came “into force at once”. The Constitution of India, in its entirety, began to apply to the State of Jammu and Kashmir from that moment.
This in itself was enough to render Article 370 completely ineffectual, except that the Article could have been used in the future by another Government to issue an order similar to the Constitutional Order of 1954.
Step 2: Preparing for the abrogation of Article 370
The next step of actually abrogating Article 370 could be undertaken only under Clause (3). That required a recommendation from the Constituent Assembly of the State, which had ceased to exist long ago. The Constitution Order (CO 272) of 2019, therefore, modified the Constitution in its application to the State by adding Clause (4) to Article 367 (which deals with Interpretations) interpreting the term “Constituent Assembly” in Clause (3) of Article 370 to mean the legislative assembly of that State. Because the State was under the President’s rule, the powers of the legislative assembly at that point of time vested in the Parliament.
Step 3: Abrogation of Article 370
Having thus acquired the constitutional authority, the Government moved a statutory resolution asking the Parliament, acting as the legislature of the State, to recommend to the President the issuing of a public notification under Clause (3) of Article 370 read with Clause (1) declaring that all clauses of Article 370 would cease to operate except Clause (1) which would read as under: “All provisions of this Constitution, as amended from time to time, without any modifications or exceptions, shall apply to the State of Jammu and Kashmir notwithstanding anything contrary…”.
That resolution was adopted by the Rajya Sabha on August 5 and by the Lok Sabha on August 6. Acting on that recommendation, the President shall issue the notification abrogating all Clauses of Article 370 except Clause (1), which would thus incorporate into the Constitution the formulation of the Constitutional Order 2019, issued on the morning of August 5, that formed the foundation of the whole exercise.
With that public notification by the President, the Constitution shall no more have any Appendices that were part of the Constitution and yet not integrated within the body of the Constitution. The Constitution and the country shall thus both recover their wholeness.
Step 4: Acquiring the authority to reorganise the State
With the coming into force of the Constitution Order of 2019, and consequently all provisions of the Constitution becoming applicable to the State, the Parliament got the authority to reorganise the State, as it would any other State of India. Under the earlier Constitution Order of 1954, the Parliament could have undertaken this exercise only with the consent of the legislature of that State. Now, the reorganisation bill had to be merely sent to the legislature of that State for its view.
The Government, therefore, drafted the Jammu and Kashmir Reorganisation Bill, 2019 dividing the State into the Union Territory of Ladakh and the Union Territory of Jammu and Kashmir. Since the powers of the legislature of the State at that time vested in the Parliament, the President referred the Jammu and Kashmir Reorganisation Bill, 2019 to the Parliament for its view.
The Government, thereafter, moved another statutory resolution asking the Parliament “to express the view to accept” the reorgnisation bill. This resolution was introduced in both houses on August 5 and was adopted on the same day.
Step 5: Passage of the Reorganisation Bill
The next step was for the Parliament to consider and pass the Reorganisation Bill. The Bill was passed by the Rajya Sabha on August 5 and by the Lok Sabha on August 6. This completed the process.
A beautifully structured step-by-step process
This elaborate and meticulously structured step-by-step exercise to abrogate Article 370 and reorganise the State of Jammu and Kashmir into two Union Territories almost had the beauty of a structured mathematical proof. As in any complex mathematical proof, every step in this exercise had been previously applied and tested in some context. None of the individual steps was a constitutional innovation, but put together these led to an innovative result.
It was this careful and rigorous structuring of the process of repeal and reorganisation which gave the Home Minister the confidence to forcefully declare in the Rajya Sabha on August 5 that the legislative and constitutional mechanism being adopted would pass the judicial scrutiny that would surely follow.
Incidentally, all these statutory resolutions and legislative measures were passed in each house by considerably more than 2/3rd of the members present and voting.
The Government deserves complements not only for its great political will in undertaking this historical exercise of reintegrating the Constitution and the country, but also for the legislative and constitutional skill and commitment displayed by it in executing its will.
Dr. J. K. Bajaj
Centre for Policy Studies
August 06, 2019